1512191 (Migration)

[2016] AATA 3278

1512191 (Migration) [2016] AATA 3278 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sunila Devi Singh

VISA APPLICANT:  Mrs Shiu Raji Ram

CASE NUMBER:  1512191

DIBP REFERENCE(S):  AKLV15081711

MEMBER:Alison Mercer

DATE:16 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

·cl.600.211 of Schedule 2 to the Regulations.

Statement made on 16 February 2016 at 4:03pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 August 2015 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 August 2015. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with four streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa because he was not satisfied that the visa applicant met cl.600.211, which requires that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. The delegate noted that between 9 February 2014 and 9 May 2015, the visa applicant had spent 358 days in Australia and only 198 days outside Australia. He further noted that she was now seeking to visit for a further 6 months and found that this was inconsistent with a genuine intention to visit temporarily.  He considered that the visa applicant was attempting to maintain ongoing residence in Australia via the visitor visa program.

5. The Tribunal received a review application from the review applicant (the visa applicant’s Australian citizen daughter) on 6 September 2015.  It was accompanied by a copy of the delegate’s decision and a statement from the review applicant dated 6 September 2015, in which she indicated that the visa applicant had been granted permanent residence in New Zealand and lived there with one of her sons, who was also a New Zealand permanent resident.  The review applicant stated that her mother was widowed 10 years ago and visited Australia frequently to see the review applicant and her 2 brothers, and their families, all of whom were Australian citizens.  The review applicant noted that the visa applicant had been visiting Australia to see her family here for 10 years and had never overstayed or sought to extend her visits.  The only reason that they had requested a stay of 6 months in the present application was that there were a number of family events occurring over the next 2 years which they hoped the visa applicant would be able to attend. The review applicant said that if the visa applicant could not be granted a 6 month visa, then they requested a 3 month multiple stay visitor visa.  The review applicant asserted that the visa applicant would not be living in Australia but only visiting to spend time with her adult children and grandchildren.  The review applicant stated that she was in a sound financial position and would take full responsibility for the visa applicant’s costs while she was in Australia.

6. The review applicant appeared before the Tribunal on 16 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from New Zealand. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages for the visa applicant’s evidence.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether cl.600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

9. In the present case, the visa applicant seeks the visa for the purposes of visiting family members in Australia. This is a purpose for which a visa in the Tourist stream may be granted: cl.600.221 and cl.600.222.

10. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl.600.211(a)).

11. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl.600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows:

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

12. Finally, the Tribunal must consider all other relevant matters (cl.600.211(c)). The term ‘all other relevant matters’ is not defined in the Act or Regulations.  The Department’s Procedures Advice Manual (PAM3) policy guidelines indicate that matters that may be relevant include, but are not limited to:

    ·personal circumstances;

    ·credibility of the visa applicant;

    ·purpose and period of stay;

    ·previous immigration/travel history; and

    ·statistical reports and profiles.

13. In relation to ‘personal circumstances, PAM3 provides as follows:

    Namely:

    Personal circumstances of the applicant that would encourage them to return to their home country (country of usual residence) at the end of the proposed visit, such as:

    ·Ongoing employment;

    ·The presence of close family members in their home country – that is, does the applicant have more close family members living in their home country than in Australia;

    ·Property or other significant assets owned in their home country; and

    ·Whether the applicant is currently residing in a country whose nationals represent a low risk of immigration non-compliance, even if the applicant is originally from a country whose nationals represent a statistically higher risk of non compliance

    and

    The personal circumstances of the applicant in their home country or general conditions in the home country that might encourage them to remain in Australia, such as:

    ·Economic circumstances including unemployment or employment that, based on knowledge of local employment conditions (such as salary rates) would not constitute a strong incentive for the applicant to leave Australia;

    ·Economic disruption, including shortages, famine or high levels of unemployment, or natural disasters in the applicant’s home country;

    ·The applicant’s personal ties to Australia, that is:

    ·Does the applicant have more close family members living in Australia than their home country

    ·Is the applicant subject of adoption proceedings that have not been resolved in their home country

    ·Military service commitments

    ·Civil disruption, including war, lawlessness or political upheaval in the applicant’s home country.

14. Moreover, in the ‘Principles’ section of PAM3 on Visitor visas, it is stated that ‘visitors to Australia must not remain in Australia on an ongoing basis on visitor visas.  This is particularly the case if there is a more appropriate visa option available.  In addition visitors to Australia must not use temporary stay arrangements to circumvent migration laws… However, officers should take a fair and reasonable approach within the framework provided by the legislation if a person’s circumstances have changed in Australia, other visa options are unavailable and compelling and compassionate circumstances exist.’

15. The Tribunal found the review and visa applicants to be sincere and credible witnesses at the Tribunal hearing.  The visa applicant gave her evidence without having heard the evidence of the review applicant.

16. Based on the documentary evidence provided to the Tribunal and Department, and the oral evidence of the review and visa applicants at the Tribunal hearing, the Tribunal makes the following findings:

    ·the review applicant is a 51 year old Australian citizen who originally migrated to Australia with her husband through the skilled migration program.  The review applicant and her husband have 2 sons aged 23 and 20;

    ·the review applicant and her husband own their own home in Melbourne.  The review applicant works part time in the banking industry (having previously worked full time) and her husband works full time as a subcontractor for Optus;

    ·the review applicant has 2 adult brothers in Melbourne who are Australian citizens, Satendra and Sailesh. Both are married with families.  Satendra has a 20 year old daughter and an 17 year old son. Sailesh has a 10 year old son.  The review applicant’s brothers are both employed;

    ·the review applicant has another adult brother, Sushil, who is a permanent resident of New Zealand. Sushil originally went to New Zealand on a 3 year work visa and subsequently applied for and was granted permanent residence there.  He will be eligible to apply for New Zealand citizenship in 2016 or 2017;

    ·the visa applicant is a 73 year old Fijian citizen, who is also a New Zealand permanent resident.  She lives with her son, Sushil, and his wife in New Zealand. Her 3 other adult children (including the review applicant) live in Australia;

    ·the visa applicant also has 2 siblings (a brother and sister) who reside in Fiji and 1 sister who resides in Canada.  Her late husband’s brothers reside in Fiji;

    ·the visa applicant is retired from home duties. She was widowed approximately 10 years ago.  She is financially supported by Sushil and his wife, with assistance from her 3 adult children in Australia. She does not receive a New Zealand or Fijian pension and has no significant assets in either country or in Australia;

    ·the visa applicant and her husband previously lived with Sushil and his wife in Fiji.  The visa applicant continued to live with them after her husband died.  When Sushil went to work in New Zealand for 3 years, the visa applicant remained living with her Sushil’s wife in Fiji but also visited her children in Australia.  She and Sushil’s wife were then sponsored to New Zealand when Sushil obtained permanent residence there;

    ·since 1996, the visa applicant has visited Australia 20 times for periods of 1 to 3 months each time.  She did not overstay her visa on any of these occasions;

    ·the review and visa applicant originally sought a visitor visa for 6 months so that the visa applicant could attend several family events in Australia, including the review applicant’s 25^th wedding anniversary in December 2015 and the review applicant’s younger son’s 21^st birthday which will occur in May 2016, without having to depart Australia and return; and

    ·the visa applicant would stay with the review applicant and her family and all costs of her stay would be met by the review applicant and her brothers and husband.

17. At the hearing, the Tribunal raised with the review applicant the concerns expressed by the Department that the visa applicant’s frequent visits to Australia in the last 2 years or so suggested that the visitor visa program was being used as a de facto means of her mother residing here on a long-term basis.  The review applicant said that this was not the case.  She acknowledged that her mother had spent a lot of time in Australia in the last couple of years but stated that this was during the period when her brother Sushil, with whom her mother normally lived, was in the process of migrating to New Zealand. During most of this time, the review applicant’s mother and her daughter in law (Sushil’s wife) remained in Fiji as Sushil was working temporarily in New Zealand as the holder of a 3 year working visa.  He decided near the end of this visa to apply for permanent residence and this took some time to be granted.  During this period, the visa applicant was lonely and spent a lot of time in Australia visiting her 3 adult children and their families here.

18. The review applicant noted that the migration situation had now stabilised and the visa applicant lived with Sushil and his wife in New Zealand. The review applicant thought that she would be eligible for citizenship there in due course, after Sushil became a New Zealand citizen. She told the Tribunal that the visa applicant had lived with Sushil and his wife for many years and had no intention of changing this family arrangement in order to live with any of her adult children in Australia.  However, she genuinely wanted to be able to visit Australia to see them regularly while she was still able to do so.  The review applicant said that she and her family and the visa applicant had close and extended family members in Australia, New Zealand, Fiji and Canada. The review applicant said that family members abroad often travelled to Fiji or New Zealand for reunions, but her mother still wanted to see her relatives in their home countries.  The review applicant said that she and her mother went to see her mother’s sister in Canada 3 years ago and that they had hoped that the visa applicant could have been here for the 25^th wedding anniversary in December 2015 but even though she was not able to be here for that, there were a number of 21^st and 50^th birthday celebrations coming up in 2016 and 2017 which they hoped the visa applicant could attend in Australia.

19. In response to the Tribunal’s query, the review applicant said that they had discussed whether or not to apply for the visa applicant to get permanent residence in Australia, but the visa applicant did not want to apply as she preferred to live with Sushil and his wife in Fiji and now in New Zealand.  However, she wanted to continue to be able to visit her family in Australia.  The review applicant said that she travelled to see her mother in New Zealand but she and her husband made 3 to 4 trips a year to Fiji because her in-laws live there, and this tended to use up most of her annual leave.  The review applicant emphasised that the visa applicant had never overstayed a previous visitor visa and would not do so now.  The review applicant said that they requested a stay of 6 months as a matter of convenience and flexibility, as it would allow her mother to stay for more than 3 months to attend family functions but she was very unlikely to stay in Australia for 6 months continuously.  The review and visa applicants both indicated that they would be happy if she was granted a 3 month, multiple travel visitor visa as before, if the Department considered 6 months too long.

20. The visa applicant’s evidence was consistent with her daughter’s.  She described her home as being in New Zealand with Sushil and his wife, but emphasised that she wanted to visit Australia to see her children and grandchildren there.  She confirmed that she had spent a lot of time in recent years in Australia while Sushil was in the process of migrating to New Zealand.

21. The Tribunal notes the concerns raised by the delegate that the frequency of the visa applicant’s visits to Australia (particularly in the last couple of years) and the presence here of 3 out of her 4 children raises the possibility that she is utilising the visitor visa program to effectively maintain ongoing residence and does not intend to visit temporarily.

22. However, having had the benefit of taking detailed oral evidence from the review and visa applicants, both of whom it found to be credible witnesses, the Tribunal is satisfied that the increased frequency of the visa applicant’s visits to Australia in the last couple of years were because of the unsettled migration situation of her son Sushil, with whom she has lived for at least 10 years.  The Tribunal is satisfied that although the majority of her children are in Australia, the visa applicant nevertheless considers her home to be with her son Sushil and his wife, now in New Zealand.  The Tribunal considers that the visa applicant has strong family ties in Australia, New Zealand and Fiji.  While on paper, her ties to Australia might seem stronger than to the other countries, the Tribunal accepts that it is the decision of the whole family that the visa applicant resides with Sushil and his wife and that her strongest family tie is therefore now in New Zealand.  The Tribunal considers that there are no political or economic factors in relation to New Zealand that would act as a disincentive for the visa applicant to return there after visiting Australia, particularly as both she and her family there are now permanent residents of that country and will be eligible in due course for citizenship.

23. The Tribunal considers it understandable that the visa applicant nevertheless wishes to visit Australia given the presence of her other children and grandchildren but concludes that this does not in and of itself indicate that she wishes to remain here permanently or that she would overstay a future visitor visa.  In this regard, the Tribunal gives considerable weight to her past immigration record, which demonstrates regular visits to Australia with no suggestion of overstaying at any point, nor of any other form of non-compliance with her visa conditions.  The Tribunal accepts that the visa applicant has been, and would continue to be, supported financially by her children in Australia during her visits and is thus satisfied that she would not work while here.  There is no suggestion that she intends to undertake any study while in Australia and the Tribunal is satisfied that she would not apply for another visa while here nor stay longer than any authorised period granted to her.

24. In relation to the period sought, the Tribunal notes the review applicant’s advice that there is no option but to apply for either a 3 month or a 6 month visa, despite the fact that it was likely that the visa applicant would not wish to stay in Australia for 6 months continuously.  It remains a matter for the Department as to what period is granted to the visa applicant.

25. For the above reasons the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl.600.211 are met.

    DECISION

26. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 600 (Visitor) (Class FA) visa:

    ·cl.600.211 of Schedule 2 to the Regulations.

    Alison Mercer
    Member